IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 21/07/2005
CORAM :THE HONBLE MRS. JUSTICE R. BANUMATHI
C.R.P.(PD)NO. 857 of 2004 and C.M.P. No. 8162 of 2004
Umamaheswari .. Petitioner
-Vs-
K. Babu .. Respondent
Petition filed under Article 226 of the Constitution of India
against the fair and decretal order dated 30.12.2003 made in I.A.No. 1368 of
2003 in H.M.O.P.No.540 of 2001 on the file of the Family Court, Coimbatore.
For Petitioner : Mr. J. Ramakrishnan
For Respondent : Ms. P.T. Asha
:ORDER
This Revision is preferred against the order of the Family
Court, Coimbatore made in I.A. No. 1368 of 2003 in H.M.O.P. No. 540 of
2001, dated 30.12.2003 allowing the application filed under Order VI Rule 1 7
of C.P.C. permitting the Petitioner/Husband to amend the petition.
Respondent/Wife is the Revision Petitioner.
2. Marriage between the Revision Petitioner and the
Respondent was solemnised as per Hindu Rites and Customs on 30.11.1998. The
spouses were living in the house of the Respondent/Husband. H.M.O.P.No.540 of
2001 has been filed for divorce. Case of the Respondent/Husband is that while
the Revision Petitioner/ Wife was living with him, she had no intention to
consummate the marriage. She did not cooperate with the Respondent/ Husband
in conjugal obligation during three months of their matrimonial life. In
February 1999, the Revision Petitioner/ Wife was going along with her mother
for medical check up. But the Revision Petitioner/ Wife and her mother did
not tell anything about their conversation with the Doctor. After finishing
medical check up, she was staying with the Respondent/ Husband in his house
for two days. Thereafter, she left for her parents house without giving any
intimation to the Respondent/ Husband and then she did not return back to the
matrimonial house. She had also taken away all her jewels, valuable sarees
and other valuable things. For about two and half years, the Revision
Petitioner/ Wife has not resumed her family life. When the Respondent/
Husband had contacted to bring her back, he was insulted by her father on may
occasion s. In the petition, it is alleged that the Revision Petitioner/ Wife
is sterile and since she has left the matrimonial house for about two and half
years i.e. from February 1999, it amounts to desertion on the part of the
Revision Petitioner/ Wife. On the ground of cruelty, sterility, desertion and
on non consummation of marriage, the Respondent/ Husband has filed the
petition for divorce in H.M.O.P.No.540 of 2001. The said petition was filed
under Section 13 (1)(i-a) of Hindu Marriage Act.
3. The Revision Petitioner/ Wife has filed the counter
statement contending that she was happily living with the Respondent/ Husband
for about two years. According to her, she is the @Kiw bgz;@ of the
Respondent/ Husband and the marriage was performed as per their wish and it
was an arranged marriage. The Revision Petitioner/ wife could not procreate a
child; her mother insisted to take her to hospital. But the Respondent/
Husband was denying permission even to see her parents. The Respondent/
Husband had beaten the Revision Petitioner/ Wife and was treating her cruelly.
Despite the request from the parents of the Revision Petitioner/ Wife and the
Village elders, the Respondent/ Husband was not willing to take her back. In
her counter statement, the Revision Petitioner had expressed her willingness
to live with her Husband.
4. The main petition was pending enquiry. At that stage, the
Respondent/ Husband has filed I.A.No.1368 of 2003 for amendment of the
petition :-
(i) To amend the petition by adding
Section 13(1)(i-b)of Hindu Marriage Act 1955;
(ii) To substitute the word impotency/Impotent
instead of sterility/sterile.
In the supporting affidavit, the Respondent/Husband has alleged that due to
omission, the relevant Section for Desertion was not included in the petition.
It is further alleged that the Revision Petitioner/ Wife was not showing any
interest in the famil y life. After the medical check up, she has abruptly
left the matrimonial home without any cause thereby deserting him. According
to the Respondent/ Husband Impotency means incapacity to consummate the
marriage. Under the said circumstances, the Respondent/ Husband has filed
this application to amend the word sterility with the word impotency and
had also sought for amendment to include Section 13 (1)(i-b) of Hindu Marriage
Act.
5. Resisting the application for amendment, the Revision
Petitioner/ Wife has filed the counter statement strictly denying her
impotency. The application for amendment had been filed belatedly to fill up
the lacunae in the main petition. It is alleged that the medical certificate
filed by the Wife would prove that she is fit for sexual intercourse and also
fit for matrimonial life.
6. Upon consideration of contentions of both parties, the
learned Judge, Family Court has allowed the amendment application interalia
finding that omission to include Section 13 (1)(i-b) of the Hindu Marriage Act
is not a serious mistake but only an inadvertent mistake and that inclusion of
Section 13 (1)(i-b) would not change the nature of the petition. The learned
Judge accepted the plea for amendment to substitute the word Impotent
instead of the word sterile . In the view of the trial Court, the word
sterile has been mistakenly used and therefore by allowing the proposed
amendment, no prejudice would be caused to the Revision Petitioner/ Wife.
7. Aggrieved over the order of allowing the amendment
application, the Revision Petitioner/ Wife has filed this Revision. The
learned counsel for the Revision Petitioner/ Wife has submitted that the
proposed amendment has been sought for nearly after two years when the case
has been posted for trial. Drawing the attention of the Court to the
averments in the petition, the learned counsel for the Revision Petitioner has
submitted that the Husband has only alleged suspicion regarding the Revision
Petitioners capability for sexual intercourse and matrimonial life and that
suspicion may not be a ground for amendment of the main petition substituting
the word Impotent. Submitting that the Revision Petitioner/ Wife is fit for
consummation, the learned counsel for the Revision Petitioner has contended
that even according to the Respondent/ Husband, the defect was only a curable
defect and that there is no reason for alleging impotency. Assailing the
impugned order, the learned counsel for the Revision Petitioner has submitted
that the order of allowing the amendment application suffers from material
irregularity since the Court below had not properly appreciated the proposed
amendment which seeks to introduce a new case.
8. Drawing the attention of the Court to the averments in the
petition, the learned counsel for the Respondent/ Husband has submitted that
sufficient averments have been made to substantiate the plea of desertion and
that the inclusion of the Section for desertion is only formal and that no
valid objection could be raised. Submitting that the expression Sterility
could be substituted as Impotency. The learned counsel for the Respondent/
Husband ha s submitted that in consideration of the averments in the petition,
the trial Court has rightly ordered the amendment petition and that the
impugned order does not suffer from any infirmity warranting interference.
9. Whether the order of allowing the proposed amendment
amending the main petition in HMOP No. 540 of 2001 permitting the Husband to
include Section 13 (1)(i-b) of the Hindu Marriage Act and permitting him to
substitute the word Impotency instead of Sterility suffers from material
irregularity is the main point that arises for consideration in this Revision.
10. The main petition in HMOP No. 540 of 2001 was filed on
1.10.200 1. The amendment application in I.A.No.1368 of 2003 was filed on
23.9.2003. The amendment application is said to have been filed when the main
case was posted for trial. The proposed amendment is assailed on the ground
that it has been filed belatedly. Mere delay in making the application for
amendment is not a ground for refusal of the amendment. Allowing amendment is
discretionary; amendment application if filed at a late stage, it cannot be
granted as a matter of course. But to do full and complete justice, the Court
exercising its discretion may allow the amendment. Mere delay in filing the
amendment petition by itself is no ground for dismissal of the amendment
petition.
11. The amendment could be disallowed if it introduces a
totally different, new and inconsistent case or its effect is to change the
character of the petition/suit. It is to be seen whether the proposed
amendment introduces a new plea in contradiction to the original pleading and
whether it introduces a new case. The petition for divorce has been filed
under Section 13 (1)(i-a) on the ground of cruelty. Now by the proposed
amendment, the Respondent/ Husband seeks to introduce the ground of desertion
by including the Section 13(1)(i-b)of the Hindu Marriage Act. 12.
The main point for consideration is whether the inclusion of Section 13
(1)(i-b) introduces a new case or whether it reflects only the original
pleading.
13. Drawing the attention of the Court to the averments in
the petition, the learned counsel for the Respondent/ Husband has contended
that there are sufficient averments in the main petition alleging desertion.
Referring to the desertion in para-4 of the petition it is stated that when
the Respondent left her parent, she took away her jewels, some valuable
sarees, other valuable things and marriage video, cassette, photos, the
incident has happened during February 1999 and even after two and half years
the Respondent has not resumed her family life.
14. According to the Respondent/ Husband, he has made attempt
to take her back but she has not turned back. Allegations are made to that
effect in para-5 as The petitioner made innumerable attempts to take the
Respondent for the past 2 = years to his matrimonial home for the purpose of
cure the defects but, everything went in vain.
15. Similarly in para-11, which refers to the cause of
action, it is alleged that after two days, the Respondent returned to her
parents house and never returned till date and where the Petitioners
residence at Coimbatore. Thus sufficient averments are made regarding the
desertion. The merits of those averments relating to desertion is to be seen
only at the time of trial.
16. The inclusion of Section 13 (1)(i-b) of the Act amounts
to amendment on the same set of averments. The first Para of the amendment
viz., to include Section 13(1)(i-b) does not introduce a new set of facts nor
does it introduce a new plea. In that view of the matter, the order of the
Family Court permitting amendment to include Section 13 (1)(i-b)- desertion as
a ground of divorce is to be confirmed.
17. The next limb of amendment sought for is to substitute
the word Impotent instead of the words sterility/sterile wherever it is
found in the main petition. According to the Respondent/ Husband, the Wife
was not fit for matrimonial life/ sexual intercourse and that the marriage was
not consummated. According to him, the word sterility/sterile has been
mistakenly stated and that the same is to be substituted with
Impotent/Impotency.
18. To appreciate the merits of the contention, it is
necessary to refer to the averments in the petition. In para-2 of the
Petition it is alleged that the Wife did not co-operate with the Petitioner /
Husband in conjugal obligations. ….. Petitioner also did not compel the
Respondent/ Wife for sexual intercourse during three months of matrimonial
life. In para-3 of the petition, it is further alleged that the Revision
Petitioner/ Wife was taken for medical check up and after medical check up,
the Revision Petitioner/ Wife her mother did not disclose the conversation
between them with the daughter. In the cause of action paragraph – para-11
also, it is alleged that the Respondent lived together without consummating
the marriage and later on when the Petitioner/Husband suspected sterility.
Thus, definite allegations are levelled that the marriage was not consummated.
No allegations have been made that the Revision Petitioner/ Wife is unfit for
sexual intercourse. Impotency means physical/ practical impossibility to
perform sexual act in a complete and perfect manner. Making allegations that
a person is impotent is something serious having serious implications. In the
absence of definite averments regarding impotency, the amendment cannot be
allowed in a casual manner.
19. In P. Ramanatha Aiyers The Law Lexicon Second Edition
1997, the meaning of Sterility is given as :
Sterility. Barrenness; incapacity to produce a child. It is curable
and incurable. When of the later kind at the time of marriage, and arising
from impotency, it is a good cause for dissolving a marriage. (1, tomlins
Med. Leg. 254).
In the Concise Oxford Dictionary Tenth Edition, the meaning of
Sterile has been given as:-
Sterile. Not able to produce children or young (of a plant) not able
to produce fruit or seeds. ( of land or soil) ……
In the Law Lexicon Second Edition 1997, the meaning of impotency is
stated as :-
Impotency. Incapacity for sexual intercourse.
IMPOTENCY . Impotency, as a cause for divorce, means an incurable
defect, and not every temporary or occasional incapacity, but permanent and
lasting inability for copulation and procreation.
The word barrenness is in no sense the synonym of impotency.
Incapacity for sexual intercourse is an essential ingredient of impotency.
Such an inability may arise from a variety of causes including the mental and
moral disability. (Jagdish Kumar V. Sita Devi, AIR 1 963 Pun 114, 115.
(Hindu Marriage Act (1955) S.12(1)(a).
In the Oxford Dictionary, the meaning of Impotency is stated
as :-
Impotent. (of a man) abnormally unable to achieve an erection or
orgasm.
Impotency is the lack of ability to perform full and complete sexual
intercourse. On the other hand, sterility is the incapacity to produce a
child. The word Sterility cannot be equated with the word Impotency.
Both the expressions are not interchangeable. Impotency is the incapacity for
sexual intercourse which has got serious implications. Substituting the word
Impotency for Sterility would cause serious prejudice to the Revision
Petitioner/ Wife. In the absence of definite pleading that the Revision
Petitioner/ Wife was sexually impotent or that she was incapable for sexual
intercourse, the word Impotent/Impotency cannot be substituted for the word
Sterile/ Sterility. Substitution of the word Impotency for Sterility
completely changes the original plea. It would alter the nature and character
of the petition. Considering the meaning of both the expression and the
implications on the contention of both parties, the learned Judge, Family
Court ought not to have allowed the second limb of the amendment sought for.
The impugned order allowing the amendment substituting the word
Impotent/Impotency instead of the word Sterile/ Sterility cannot be
sustained and has to be set aside.
20. For the forgoing reasons, the order of the Family Court,
Coimbatore made in I.A. No. 1368 of 2003 in H.M.O.P. No. 540 of 2001,
30.12.2003 is confirmed only regarding the first limb of the amendment i.e.
Regarding the amendment for inclusion of Section 13 (1)(i-b) of Hindu Marriage
Act. The order of allowing the second limb of amendment substituting the word
Impotency/Impotent instead of Sterility/Sterile is set aside. This
Revision Petition is partly allowed. In the circumstances of the case, there
is no order as to costs. Consequently, C.M.P. No. 8162 of 2004 is closed.
The Petitioner/ Husband is to be directed to file the amended
petition. On filing such amended petition learned Judge of Family Court,
Coimbatore is directed to afford sufficient opportunity to the Respondent/
Wife to file additional counter, if any.
To:The Judge, Family Court,Coimbatore.
